Lackow v. Walter E. Heller & Co.

466 So. 2d 1120, 10 Fla. L. Weekly 741, 1985 Fla. App. LEXIS 13071
CourtDistrict Court of Appeal of Florida
DecidedMarch 19, 1985
Docket83-1443
StatusPublished
Cited by17 cases

This text of 466 So. 2d 1120 (Lackow v. Walter E. Heller & Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lackow v. Walter E. Heller & Co., 466 So. 2d 1120, 10 Fla. L. Weekly 741, 1985 Fla. App. LEXIS 13071 (Fla. Ct. App. 1985).

Opinion

466 So.2d 1120 (1985)

Alvin LACKOW, Appellant,
v.
WALTER E. HELLER & COMPANY SOUTHEAST, INC., Appellee.

No. 83-1443.

District Court of Appeal of Florida, Third District.

March 19, 1985.
Rehearing Denied April 24, 1985.

*1121 Kreeger & Kreeger and Julian Kreeger, Miami, for appellant.

Britton, Cohen, Cassell, Kaufman & Schantz and J. Robert Olian and John Britton, Miami, for appellee.

Before HUBBART, FERGUSON and JORGENSON, JJ.

JORGENSON, Judge.

Alvin Lackow [Lackow] executed a guaranty in connection with accounts financing and inventory loan security agreements entered into by Lackow Brothers, Inc. [Lackow Brothers], as debtor, and Walter E. Heller & Company Southeast, Inc. [Heller], as creditor. After Lackow Brothers filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Reform Act, Heller sought, and, subsequently, was granted, permission from the bankruptcy court to sell the inventory and collect on the accounts receivable of Lackow Brothers in order to satisfy the outstanding debt under the security agreements. In the present action, Heller sought to hold Lackow liable for the resulting deficiency. Lackow appeals from a final judgment entered for Heller and from the trial court's denial of his motion to vacate final judgment and for grant of new trial. For the reasons which follow, we reverse the judgment entered in favor of Heller.

The only evidence offered by Heller to support its claim for a $1,069,852.61 deficiency was a computer print-out of the trial balance of the Lackow Brothers account which had been printed the day before trial. Heller introduced no source documents. Lackow's attorney objected to the admission of the print-out on the ground that it had not been made available for examination prior to trial in accordance with the pre-trial order. This objection was overruled. Although Lackow's attorney made a gallant effort during cross-examination to decipher what the figures on the print-out represented and to determine their significance, the record reflects that Lackow was effectively denied his right to cross-examine Heller's witnesses on this crucial piece of evidence. We agree with Lackow's contention that the trial court abused its discretion in admitting the print-out into evidence without first allowing Lackow an opportunity to examine it thoroughly in order to prepare the case properly for trial.[1] Since this was a non-jury proceeding, providing such an opportunity would not have been disruptive. We, therefore, reverse the final judgment and remand the case for a new trial. See Kramlich Associates, Inc. v. Robins, 312 So.2d 543 (Fla. 1st DCA 1975); cf. Thorsell v. Miller, 180 So.2d 677 (Fla. 2d DCA 1965) (not an abuse of discretion to admit exhibit not produced at pre-trial conference where plaintiffs made aware of exhibit at time defendant deposed and evidently were prepared for its introduction at trial).

Lackow's contention that the trial court erred in denying his motion to disqualify Heller's law firm, Britton, Cohen, Cassel, Kaufman & Schantz (the Britton firm), also warrants discussion. Heller filed its complaint on June 12, 1981. Trial was originally set for the week of February 15, 1982. On May 25, 1982, after the trial date had been twice continued and reset for June 7, 1982, Lackow's motion was filed. It alleged *1122 that Lackow's counsel, Julian Kreeger, of Kreeger & Kreeger (a two-lawyer firm), had recently been advised that Diane Rechner, a former secretary of Kreeger & Kreeger who had worked on confidential communications and memoranda involving this litigation and the related Lackow Brothers bankruptcy proceedings, was presently employed by the Britton firm and was working for John Britton, lead counsel for Heller. Lackow contended that the Britton firm's continued representation of Heller would be contrary to Canons 4 and 9 of the Florida Code of Professional Responsibility. Heller, in opposition to the motion to disqualify, filed an affidavit of Ms. Rechner which averred (1) that she had advised the Kreegers, prior to leaving their employ in November, 1981, that she had accepted employment with the Britton firm and would be working for John Britton, and (2) that she had not discussed the merits of this or any related action with any attorney or employee of the Britton firm. Lackow filed an affidavit of one of its secretaries affirming that Ms. Rechner had done the primary legal secretarial work in this cause and in related cases involving Lackow and Lackow Brothers and, further, stating that the former secretary (Rechner) had recently called the office to read a proposed order in this same action to Julian Kreeger. Lackow's ore tenus motion for an evidentiary hearing and his motion to disqualify counsel were denied. In its order denying Lackow's motion to disqualify counsel the trial court cites Central Milk Producers Cooperative v. Sentry Food Stores, Inc., 573 F.2d 988 (8th Cir.1978), and Redd v. Shell Oil Co., 518 F.2d 311 (10th Cir.1975). These two cases support the proposition that, after learning of the facts supporting a motion to disqualify counsel, a party may not unduly delay the filing of such motion.

In the instant case, the motion and affidavits conflict on the factual issue of when Lackow's counsel became aware of his former secretary's employment with the Britton firm. An evidentiary hearing was required to resolve this conflict.[2]See Holland v. Tenenbaum, 360 So.2d 493 (Fla. 4th DCA 1978); cf. Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979) (evidentiary hearing not required absent submission of affidavits raising a conflict on material issues of fact in opposition to movant's affidavits which established grounds for attorney disqualification).

Heller argues that the court's order denying Lackow's motion to disqualify counsel was not erroneous because this case involves a secretary's change of employment, not an attorney's. In Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982), which involves circumstances similar to those presented here — after the suit had been pending for several months, defense counsel employed a secretary who had worked for plaintiffs' law firm during that period of time — the court found that the trial court erred in sustaining plaintiffs' motion to disqualify defense counsel. The secretary's former employer had cautioned her before she left not to disclose confidential information about the case, and the secretary's new employer had told her at the outset that she would have nothing to do with the case. The secretary stated in an affidavit that she had had no contact with the case since being employed by defense counsel, had not spoken to anyone in the firm about the case, and would not do so in the future.

In its opinion, the Arkansas court suggests that Canon 9 ("A Lawyer Should Avoid Even the Appearance of Professional Impropriety") of the ABA Code of Professional Responsibility is not implicated under *1123 these circumstances because "Canon 9 is directed specifically to lawyers and to no one else," 637 S.W.2d at 571.

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Bluebook (online)
466 So. 2d 1120, 10 Fla. L. Weekly 741, 1985 Fla. App. LEXIS 13071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lackow-v-walter-e-heller-co-fladistctapp-1985.